Introduction: Due Process and Rule of Law

Due process and the rule of law are among the preconditions for protection and promotion of human rights. In a society where rule of law plays a pivotal role in its judiciary, the government facilitates all individuals, regardless of gender, ethnicity or belief, to enjoy equal rights. Equality before the law, an independent and impartial judiciary, including judges, prosecutors and lawyers who are able to defend citizens and their rights without fear of persecution or harassment, are essential elements of due process and the rule of law.

In Iran, however, due process is violated in at least the following ways:

Articles of Iranian law

The arbitrary approach of the judiciary to the implementation of laws, often violating even the most basic elements of the Islamic Republic Constitution

Lack of independent judges and impartial prosecutors

The lack of transparent and/or open court sessions

Lack of equal legal rights for all citizens

Accordingly, many citizens are sentenced based on forced confessions and lack of access to independent lawyers. In fact, many lawyers in Iran continue to face harassment, prosecution, fines and even prison sentences for defending their clients. Examples include Abdolfattah Soltani[1] and Nasrin Sotoudeh.[2] Subsequently, it may be ascertained that lack of due process is one of the most important obstacles for any improvement in the situation of the human rights in Iran, rendering this matter a top priority in any attempt to reform the country’s approach to human rights.

A complete analysis of the rule of law and due process in Iran is beyond the scope of the present issue. However, through contributions by different experts we have tried to shed light on the background to and different aspects of the violations of due process and rule of law in the Islamic Republic of Iran (IRI).

In this introductory review we will briefly mention a few of the important aspects of the violation of due process in law and practice in Iran. We will also examine what parts of Iran’s international obligations and the present Iranian constitution guarantee due process and rule of law, and which parts of the constitution violate it. We will further look at how due process is violated in practice. Finally we will provide some recommendations for the Iranian authorities and Iran’s international partners on how to proceed in order to promote due process and the rule of law in the country.

Does the Iranian constitution protect due process?

Following the Constitutional Revolution of 1906-11, Iran became the first country in the region to adopt a modern-style constitution. During the decades immediately before the Islamic revolution of 1979, the Iranian Constitution accommodated several articles that protect due process and the rule of law. These articles also exist in the Constitution adopted after the establishment of the Islamic Republic. Some of the articles that directly or indirectly promote due process of law include: 24, 27, 34 to 38, 156, 159, 165 and 166 of the Islamic Republic Constitution. For instance Article 35 grants the right to a lawyer, Article 156 underlines the independence of the judiciary stating: “Judiciary shall be an independent power that protects individual and social rights”, and Article 38 bans all forms of torture and forced confessions.[3]

In addition to joining the Universal Declaration of Human Rights in its law, Iran has ratified several international conventions promoting the rule of law such as the International Covenant on Civil and Political Rights (ICCPR)[4] . These instruments underline equal legal rights for all individuals regardless of sex, ethnicity, opinion or belief and ban many forms of discrimination. In addition, the ICCPR includes several relevant articles such as Article 14 which underlines the right to a fair trial and due process of law. Article 14 specifically mentions the importance of an impartial judicial system, access to a lawyer and a fair trial, and not compelling individuals to testify against themselves or to confess guilt.

Violation of due process according to the law

Despite the articles of the Islamic Republic Constitution and Iran’s international obligations mentioned above, several additions to the Constitution after the Islamic Revolution of 1979 violate due process. These articles are in complete contradiction to the previously mentioned articles of the Constitution and Iran’s international obligations. These articles, discussed below, undermine the independence and impartiality of the judicial system, the equality of all citizens before the law, as well as the right to a free and fair trial.

Citizens are not equal before the law

An important precondition for due process and the rule of law in any country is that of equal legal rights for all citizens. This is not the case in Iran where discriminatory laws and practices are among the most significant obstacles to due process and rule of law in the country. Iran’s Constitution, Civil Code and Penal Code have several discriminatory articles where people are discriminated based on gender and religion. Men have more rights than women, Muslims have more rights than non-Muslims and Shia Muslims have more rights than Sunnis. To mention some examples: a woman’s testimony is valued as half that of a man’s testimony in Court. A woman cannot become a judge or have an important positionsin the Judiciary. According to Article 12 of the Constitution these positions are only for men who belong to the Twelver J’afari school of Shi’ite Islam. A Muslim who murders a non-Muslim has a lighter punishment than vice versa. A full list of discriminatory laws in Iran can be found elsewhere[5]. In this way, half of the population who are women, in addition to all members of religious minorities (including Muslims who do not follow the Twelver Ja’fari Shi’ite Islam), have fewer legal rights than men. In addition, the age of criminal responsibility is 9 lunar years for girls (8 years 9 months) and 15 lunar years (14 years 7 months) for boys. This is both discrimination based on gender and a clear violation of the Convention on the Rights of the Child (CRC) which Iran has ratified.

Lack of impartiality and independence of the Judiciary

According to Article 157 of the Islamic Republic Constitution, the Head of the Judiciary who is the highest authority within the judicial system, is directly appointed and supervised by the Supreme Leader, who under the Constitution is the Head of State and has the country’s highest political power. The Head of the Judiciary must be a Mojtahed (a man with the highest level of expertise in Shi’ite Islamic jurisprudence). This in itself undermines the impartiality and independence of the judiciary. The Head of the Judiciary also appoints the Prosecutor General and the Head of the Supreme Court, both of whom must also be Mojtahed.

Judges

Judges are appointed by the Head of the Judiciary based on their beliefs, political position and allegiance to the establishment. The Head of the judiciary has also the power to dismiss judges based on his judgement. This gives little room for judges to act independently as their employment is in the hands of the Head of the Judiciary whose position is directly controlled by the Supreme Leader.

In addition, according to the Islamic Penal Code, when confessions or testimony by eyewitnesses are missing in a case, the judge can make a decision based on his exclusive opinion, without any reference to laws and codes.[6] This phenomenon is known as ‘knowledge of the judge’, or elm-e qazi [7]. The law requires that rulings based on a judge’s ‘knowledge’ derive from evidence, including circumstantial evidence, and not merely personal belief that the defendant is guilty of the crime[8]. However, there have been cases where ‘knowledge of the judge’ has been applied rather arbitrarily. These patterns throughout the judiciary lead to a culture of impunity that results in serious violations of human rights. For instance, in December 2007, Makwan Moloudzadeh was executed for sodomy charges based on the ‘knowledge of the judge’. [9]

Special Courts

After the 1979 revolution, several ‘Special Courts’ were established in Iran. The legality of these courts continues to be disputed and many experts believe that they are not constitutional. The Revolutionary Courts were established in 1979 by the first Supreme leader Ayatollah Khomeini. They were temporary courts designed to deal with the officials of the former regime. However, more than 37 years later they continue to operate. All cases regarded as security-related, such as cases involving political and civil activists, and others allegedly involved in corruption and drugs-related charges are processed by the Revolutionary Courts. These courts are responsible for the vast majority of the death sentences issued and carried out over the last 37 years in Iran. The Revolutionary Courts are less transparent than the Public Courts (both criminal and civil) and Revolutionary Court judges are known for the abuse of their legal powers more than other judges[10]. Revolutionary Court judges often deny access to legal representation during the investigation phase and prevent lawyers from accessing client files on the basis of confidentiality or that the lawyers have insufficient ‘qualifications’ to review certain files.

The Special Clerical Court was also established in an ad hoc manner lacking any basis in the Constitution. This court is not a subset of the judicial system and deals with crimes committed primarily by the clergy. As it functions independently under the direct supervision of the Supreme Leader, it does not follow the official Procedural Code.

In addition, other ‘special courts’ operate within the judicial system of Iran, without having a legal basis. Special courts are branches of the public courts but are designed to deal with certain groups such as the special courts for media or for government employees. The very existence of these courts lacks legal justification and is a violation of the equality of all citizens before the law.

Lawyers and Bar Associations

For many years, the Islamic Republic authorities have subjected Iranian human rights lawyers, their families and colleagues to persecution, intimidation, harassment, property confiscation and imprisonment. Lawyers representing human rights defenders are specifically targeted. Several lawyers have been sentenced to imprisonment, they often receive absurd fines of millions of rials that serve as a deterrent to accessing justice, and have been banned from practicing their profession or travelling abroad. Many have faced charges such as acting against national security. Lawyers who choose to defend prisoners facing security or political charges face significant risks and challenges, which in turn may influence how they defend their clients. Article 128 of the Criminal Code of Procedure for Public and Revolutionary Courts[11] provides the right to legal representation during the investigation phase, with one exception which gives the judges power to exclude lawyers for the purposes of confidentiality, the prevention of corruption and for national security crimes. More often than not, in cases processed by the Revolutionary Courts the judges abuse this exception. Almost all those sentenced for security-related charges (such as membership of banned opposition groups) and many of those arrested for drug-related offences are denied access to lawyers during the investigation phase. Furthermore, the Iranian Bar Association, an entity established as an independent body since 1954, was shut down after the Islamic Revolution. Once the Bar Association reopened, it had lost its independence and ability to defend a lawyer’s union rights. Lawyers who want to run in the Bar Association’s Board of Directors election, must be approved by a Disciplinary Court of Advocates, under the supervision of the Judiciary. This means that lawyers who have been critical of the authorities can be banned from potential membership of the Board of Directors. This is a clear violation of Articles 19 and 22 of the ICCPR ratified by Iran. These trends point to the fact that in Iran lawyers do not enjoy the right to freely exercise their profession, and lack freedom of expression and freedom of association.

Violations of the process in practice

In addition to the legal issues mentioned above, due process of law is violated arbitrarily and despite the law. There are many reports indicating the law enforcement authorities, including the judiciary and judges fail to follow the Islamic Republic’s legal code. The use of torture, forced confessions, sham trials, trumped up charges and lack of access to legal representation even after the investigation phase occur in many cases handled by the Revolutionary Courts system. Furthermore, the lack of transparency and culture of impunity rampant throughout the Islamic Republic judiciary prevents access to official information, reports and figures regarding those held illegally or executed, particularly in marginal communities. Another cause of such violations is that the Islamic Republic legal system allows for a considerable range of heterogeneous charges to result in the death penalty, including sexual preferences, adultery, insulting the prophet, economic corruption and vague charges such as ‘corruption on earth’. Article 286 of the Islamic Penal Code defines thisn as ‘a person who commits a crime on an extensive level against the physical integrity of others, against the domestic or external security, spreads lies, disrupts the national economic system, undertakes arson and destruction, disseminates poisonous, microbiological and dangerous substances, establishes corruption and prostitution centres or assists in establishing them.’ Article 286 does not offer concrete definitions for either the term ‘crime’ or the scope of ‘extensive’ and this therefore gives the judges more power to interpret the law at their own will.

Torture and forced confessions

The Islamic Republic Constitution bans the use of torture in order to extract confessions. Article 38 of the Constitution states: ‘All forms of torture for the purpose of extracting confessions or acquiring information are forbidden. Compulsion of individuals to testify, confess, or take an oath is not permissible; and any testimony, confession, or oath obtained under duress is devoid of value and credence. Violation of this article is liable to punishment in accordance with the law’[12].

However, testimonies from numerous witnesses, including televised confessions, show that torture and the acquisition of forced confessions are system-wide techniques employed throughout the Islamic Republic judiciary. In the years immediately following the 1979 Revolution it was believed that torture, including the sexual torture of minors[13], to extract forced confessions were mainly used against people affiliated with the banned opposition groups. In recent years reports by international and Iranian human rights groups[14] show that torture and forced confession during the investigation phase is the rule and not the exception. Furthermore, this practice is not limited to cases involving political and security related charges. Almost all prisoners who are arrested for drug offences have been kept in solitary confinement and subjected to physical torture in the investigation phase following their detention, while being denied access to a lawyer. In many cases confessions given during detention have been the only evidence available for the judge to base his verdict upon. Torture is also used in other criminal cases involving rape or murder where there is not enough evidence against the suspect. In 2014 a man who had confessed to the crime but was absolved of all charges 48 hours before his execution was to be carried out, was asked as to why he had confessed to a murder he had not committed? He answered: “They beat me up so much that I thought if I falsely do not confess, I would die during the interrogation”. Needless to say, he did not have access to a lawyer after his arrest.

Sham trials

Articles 36 and 37 of the Iranian Constitution say that the ‘passing and execution of a sentence must be only by a competent court and in accordance with law’, and ‘Innocence is to be presumed, and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court’.[15]

However one does not need to refer back to the 1980s to see courts issuing death sentences after trials which lasted only 5 to 15 minutes.[16] In July 2016, 25 Sunni Kurds were executed, sentenced by the Revolutionary Court of Tehran for alleged cooperation with terrorist groups. According to several independent witness testimonies, and the lawyer of some of the prisoners, their trial did not last beyond 15 minutes. The notorious Judge Abolghasem Salavati of the Tehran Revolutionary Court sentenced them to death. Several members of the banned opposition groups, who have been executed during the last 5 years, had been sentenced by the Revolutionary Court in a similar manner.

Sham trials also include other charges, such as drug-related offences which are processed by the Revolutionary Courts. It seems that the Revolutionary Court judges more often abuse their powers and the trials by these Courts more often are sham.

People are not equal

Although the Iranian Constitution says all citizens are equal before the law, in reality some citizens are ‘more equal than others’. There are numerous examples of this in the history of the Islamic Republic. To illustrate this we mention two examples. In January 2013 two young men were hanged publicly who were charged with threatening a man with a knife and mugging him on the street few weeks earlier. The incident was caught on a monitoring camera and distributed on social media. The two young men were arrested and sentenced to death charged with ‘moharebeh’ (waging war against God) because Judge Salavati was of the opinion that what they did, especially because they were armed with a knife, had terrorised the public.[17] In 2015, Mahmood Karimi, a famous religious singer close to the Supreme Leader was involved in a car accident. He started arguing with the couple driving the other car and fired several shots at their car with his revolver. The incident received much media attention and the couple filed a complaint against him. However, the Iranian Judiciary dropped all charges against Mr Karimi and he didn’t face any sanctions.[18] The public hanging of two young men for using a knife and dropped charges for a man close to the Supreme Leader using gunfire illustrates that the Judiciary doesn’t treat people equally. The abovementioned case is not unique.

Due process is violated in Iran both by law, and despite the law. The lack of an independent judiciary whose politically appointed judges are allowed to abuse their power, limitations on the independence of lawyers, discriminatory laws against segments of the population and an arbitrary approach to implementation which has become the modus operandi throughout the Islamic Republic’s law enforcement system, are all factors which must be changed in order to establish the rule of law and due process in Iran. Some of these changes seem more difficult than others. For instance, creating an independent judiciary is not possible without placing limitations on the legal powers of the Supreme Leader. This must of course be the ultimate goal of any reform. However any reference to the Supreme Leader’s position is considered by the authorities as crossing a red line and will be associated with considerable risk to their safety and freedom. But campaigning for the removal of some of the discriminatory laws in the constitution, shutting down the Revolutionary Courts, giving more freedom and power to the Bar Association, pushing for more freedom of expression and assembly and ending arbitrary patterns and practices are among the issues that the Iranian civil society inside Iran and countries with bilateral dialogues with Iran can push for. Real improvements in the human rights situation are not possible without strengthening the rule of law. For instance, Iranian legislators have sent a new law amendment calling for the abolition of the death penalty for several drug offences. However, as long as the drug offenders have no access to legal representation after their arrest, are subjected to torture to extract false confessions and tried by the Revolutionary Court in sham trials, a change in the law will not necessarily lead to a reduction in the number of drug-related executions.

In light of the above, we propose the following policy recommendations:

For the Islamic Republic authorities to:

review all legislation with a view to strengthening access to the due process of law and eradicating the culture of impunity, in particular by safeguarding an independent Bar Association and making provisions for legal aid

guarantee the rights and protection of lawyers undertaking their professional duties

end the practice of torture and other cruel and inhuman or degrading treatment or punishment such as forced and false confessions and solitary confinement

ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

suspend the practice of the death penalty, in particular for offences committed below the age of 18 and for drug crimes, in light of the serious impediments to due process of law and fair trials, and reserve this sentence to the most serious crimes in line with Iran’s international commitments

Stop the practice of public executions which is not only a degrading and inhumane punishment for the convict, but also brutalises the society as a whole

guarantee the right of those facing execution to seek pardon, or a commuted sentence through access to independent legal representation